Justice Sotomayor Needs To Re-Read Marbury v. Madison

During oral argument in DobbsJustice Breyer urged everyone to read the document again. Casey. Justice Sotomayor’s former law professor ought to give Justice Sotomayor a second reading assignment.

Justice Sotomayor wanted to emphasize that the Court does not base many of its decisions on the Constitution. Ilya also wrote about this issue. Sotomayor identifies MarburyAs an example,

JUSTICE SOTOMAYOR: Counsel there is so much more than what’s in the Constitution. This includes the fact that the Constitution gives us the final word. Marbury vs Madison. The Constitution does not say that the Court is the. Supreme Court is the ultimate authority on the Constitution.. At the time, it was completely new. The Court did, however, reason from Constitution structure to determine that it was the intended result. 

Huh? There is absolutely nothing in MarburyThe Supreme Court is the one who has “the last word” on the meaning of the Constitution. Nothing. This bold claim of supremacy by the judiciary would never be made until Cooper v. Aaron. One of the most enduring myths is indeed CooperThis principle was first asserted by Chief Justice Marshall in 1805. Balderdash.

To continue, Cooper The “structure” of the Constitution was not the basis for the Court’s decision. It was merely asserting the power to bind everybody, anywhere, as an ipse dixit. CooperThis was compatible with the Warren Court’s style of creativity in judicial matters.

Justice Sotomayor next tried to analyze Marbury to substantive due process decisions like MeyerPierceGriswold, LoveAnd Obergefell:

The Court in Roe and Casey affirmed that the structure of the Court allows for certain individual decisions to be made by individuals, and that the state cannot interfere with them. They are the faith that parents teach their children. It’s in their abilities to learn at home, if they so choose. It’s up to them to teach. It is important to recognize that people have the right to privacy when deciding whether or not they want contraception. It’s in the freedom to decide who they will marry.

These things, I am afraid, are not written into the Constitution. These things, along with Marbury and Madison, have been derived from the Constitution’s structure.

Huh? Marbury The argument was very simple and textualist. Although the Constitution permits Congress to alter the Supreme Court’s appellate jurisdiction but not the original jurisdiction, the Constitution does not grant Congress similar powers. Congress couldn’t expand the Court’s initial jurisdiction to include the mandamus writ. There are some valid points to this case. Did the Judiciary Act of1789 expand that original jurisdiction? I don’t understand the reasoning. MarburyIt can be likened to the following: Obergefell.

The current trend is to remove John Marshall from the law and erase his name from any edifice. We should at least understand the actions and omissions of Marshall.